Cost to Lake George of Not Holding APA Hearings
by Dave Gibson, Managing Partner, Adirondack Wild
The Adirondack Park Agency (APA) last held an adjudicatory public hearing in 2011 – the kind of hearing that involves sworn testimony and cross-examination of evidence before a law judge, followed by a full hearing record on which to base a judicious, carefully examined, evidence-based decision. That 2011 hearing was for the proposed Adirondack Club and Resort subdivision and development near Tupper Lake. In the eleven years since, and despite the many hundreds of permits issued by the APA since, including many large, regional projects, not a single adjudicatory public hearing has been convened by the APA.
I’m not suggesting for an instant that the APA permit issued for the Adirondack Club and Resort following that 2011 hearing was carefully based upon the hearing’s evidence. Issuance of that permit during that time was, largely, a political decision reached by the agency before the hearing had even concluded. Perhaps for that reason I am occasionally asked whether adjudicatory hearings have any merit or public benefit. I believe they do, even that ACR hearing. Ecological, regional planning and economic evidence in that hearing’s record still echo today as highly relevant for the present and for the future. Many APA public hearings before 2011 significantly reduced negative impacts of new land use and development in the Park through project denial or through major modification of the original application.
As to why the agency has failed to hold a hearing since the ACR’s, that is not accidental. Rather, it was a decision made by the Executive Branch (then Governor Andrew Cuomo) and by a willing executive staff at the APA. I feel that the ACR hearing cast a long shadow over the APA which has contributed to the decision not to hold any more. Further, holding any adjudicatory hearing is time consuming on the staff of the smallest state agency. Its degree of difficulty must be especially high during a pandemic.
However, 2012-19 passed without APA holding a single hearing – pre-COVID. Further, my own town has held remote public hearings throughout the pandemic. From Feb. 1987 (my first APA meeting) to the ACR’s 2011 hearing, the agency held at least one adjudicatory public hearing every year, sometimes several in a single year. Since 2011 the evidence points to persistent, purposeful resistance to adjudicating permit issues emanating from the Governor and from the APA’s leadership.
This situation has gotten so serious that Adirondack and statewide environmental groups, including the one I represent (Adirondack Wild: Friends of the Forest Preserve), sent a recent group letter to the APA on this topic. The letter, signed by Adirondack Wild, Adirondack Council, Environmental Advocates NY, Sierra Club Atlantic Chapter and former APA member Dr. Chad P. Dawson reads, in part:
“The undersigned…have great concerns about the spread of adverse environmental impacts across the Adirondack Park and what appears to be an ongoing resistance by the Agency to hold adjudicatory public hearings under its regulatory criteria.
A number of high-profile, complex land use and development projects with a high degree of public interest and with a likelihood of creating a variety of adverse impacts in the Adirondack Park are now in a pre-application or incomplete application status at the agency. Many of these meet your Part 580 regulatory criteria for an adjudicatory hearing… Our concern is that the Agency will continue to waive the opportunity to hold such hearings for large, complex projects possessing adverse impacts and a significant degree of public interest, a pattern since 2011 when the last Agency adjudicatory public hearing was convened.”
Since 2011 many projects amply met your hearing criteria but failed to be sent to adjudication. These included Highland Farmers LLC subdivision in Keene, the Zip-Flyer on French Mountain in Lake George, Woodworth Lake subdivision in Benson, Woodward Lake subdivision in Northhampton, Barile Family subdivision in North Elba and, most recently, Red Rock Quarry at White Lake in Forestport. In fact, one is on your agenda this month (aquatic herbicide treatments, Lake George Park Commission).
Staff comments on public hearing criteria at the December 2021 meeting suggest that large, complex projects are only recommended for adjudication when there are “gaps in information” presented by the applicant or when staff anticipate that “six or more members of the agency will not recommend approval.”
In fact, under Part 580 of Agency regulations staff and/or the board may recommend a hearing based on:
project size and complexity measured by cost, area, effect on localities or uniqueness of resources affected,
degree of public interest as evidenced by communication in Agency files,
the presence of significant issues,
the possibility that approval be conditioned only upon major modifications or substantial conditions,
the possibility that hearing information would aid the agency in its review.
There is no legal requirement that a project meet each and every one of the regulatory criteria to be sent to adjudication.”
The letter concludes that it is important for Agency executive staff, members and designees to bring this out into the open “so that the possibility exists to bring a future application to adjudication, “and thus to impose substantial conditions, major modifications or, as may be warranted, project denial without prejudice to the applicants.”
That’s right. The possibility for denial or even major modifications of any APA permit is conditioned on the holding of an adjudicatory public hearing on a specific permit application. That severe legal limitation on the APA’s powers to deny a permit application has been the law since 1973. The state legislature should change that undue limitation on the APA’s authority.
What seems clear to me is that the very possibility of a permit’s denial based on a publicly accessible hearing record is sufficiently unspeakable at the APA that it results in the policy not to hold a hearing in the first place.
Despite dozens of letters of concerned members of the Lake George community this month asking APA to deny a permit for using herbicide ProcellaCOR in two bays of Lake George, APA legally could not deny the permit because neither the APA staff nor its members had ordered a public hearing sixty days after declaring the herbicide application complete. That is the APA’s legally required time clock.
Back in the winter while the APA’s time clocks were still running, APA could have issued an additional notice of incomplete project completion, or NIPA, to the applicant Lake George Park Commission. There are plenty of informational gaps in the application, as a number of public comment letters pointed to. Then, depending on the quality of the additional information received from the applicant, the APA could have recommended this all go to adjudicatory public hearing.
Again, the 11-year-old policy dictated the answer: no. The APA staff, with the concurrence of six of the APA’s members (including all three state agency designees, from DEC, State, and Economic Development), purposefully let those time clocks expire several months ago. All the APA could have done at its April meeting was to ask the applicant, Lake George Park Commission, for permission to stop the permit time clock in the pursuit of answers to specified areas of further investigation. The agency did not even get six votes for that.
Yet, it did get four votes for that. For the first time in many, many years four APA members present voted against an application, and for good reasons. Read the letters to the APA from the Lake George Waterkeeper, the Fund for Lake George, the Lake George Association, and from limnologist Dr. Carol Collins, among others. Those detailed letters from experts who have studied Lake George for a long time raise all manner of informed, concerned questions about the possible impacts of this herbicide on various aspects of Lake George’s public health and ecosystems, questions that have not been answered yet for lack of time.
Such lingering questions from experts so familiar with the lake about the impacts of the herbicide were precisely why the Lake George application met every one of the APA’s regulatory criteria to hold an adjudicatory public hearing where evidence could be sworn, subject to cross-examination, and entered into a formal record on which the APA could render a deliberative, well-reasoned, evidence-based decision.
One of these years the ice jam will break, and APA will hold another adjudicatory public hearing. The question is how many hasty, poorly reasoned, environmentally damaging permits it may issue in the interim.
Lake George from Prospect Mtn. Photo by D. Gibson